Citation Nr: 1001566
Decision Date: 01/11/10 Archive Date: 01/22/10
DOCKET NO. 08-03 266 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for fibroid tumor in
the uterus.
2. Entitlement to service connection for a right hip
disability, to include as a manifestation of a
musculoskeletal process.
3. Entitlement to service connection for a left hip
disability, to include as a manifestation of a
musculoskeletal process.
4. Entitlement to service connection for cervical spine
disability claimed as numbness of the neck, to include as a
manifestation of a musculoskeletal process.
5. Entitlement to service connection for bilateral hearing
loss.
6. Entitlement to service connection for residuals of a left
ankle sprain, to include as a manifestation of a
musculoskeletal process.
7. Entitlement to service connection for left knee
arthralgia, to include as a manifestation of a
musculoskeletal process.
8. Entitlement to service connection for right knee internal
derangement, to include as a manifestation of a
musculoskeletal process.
9. Entitlement to service connection for right hand
disability.
10. Entitlement to service connection for a right ankle
condition.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
September 1981 until her retirement from service in September
2005.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an August 2007 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee.
In July 2009, the Veteran appeared at the RO and testified at
a hearing before the undersigned Acting Veterans Law Judge.
A transcript of the hearing is of record. At the hearing,
the Veteran submitted a waiver of initial RO review of VA
medical records obtained subsequent to the December 2007
statement of the case, in accordance with 38 C.F.R.
§ 20.1304.
At the hearing, the Veteran appeared to raise the issue of
service connection for tinnitus. As the RO has not
adjudicated this issue, it is referred to the RO for its
appropriate consideration.
The issues of entitlement to service connection for uterine
fibroid tumor, right hip disability, left hip disability,
cervical spine disability, bilateral hearing loss, left ankle
disability, left knee disability, and right knee disability
are addressed in the REMAND portion of the decision below and
are REMANDED to the RO via the Appeals Management Center in
Washington, DC.
FINDING OF FACT
At a July 2009 hearing, the Veteran indicated that she wished
to withdraw the issues of entitlement to service connection
for a right hand disability and entitlement to service
connection for a right ankle condition.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal by
the Veteran have been met with respect to the claim of
entitlement to service connection for a right hand
disability. 38 U.S.C.A. §§ 7104, 7105(b) and (d) (West
2002); 38 C.F.R. § 20.204 (2009).
2. The criteria for withdrawal of a substantive appeal by
the Veteran have been met with respect to the claim of
entitlement to service connection for a right ankle
condition. 38 U.S.C.A. §§ 7104, 7105(b) and (d) (West 2002);
38 C.F.R. § 20.204 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A substantive appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202. Withdrawal may be made by
the appellant or by his or her authorized representative. 38
C.F.R. § 20.204. Appeals must be withdrawn in writing except
for appeals withdrawn on the record at a hearing. Id. At
her July 2009 hearing the Veteran withdrew her appeal for
service connection for a right hand disability and her appeal
for service connection for a right ankle condition.
Accordingly, the Board does not have jurisdiction to review
either appeal, and these appeals are dismissed.
ORDER
The appeal for service connection for a right hand condition
is dismissed.
The appeal for service connection for a right ankle condition
is dismissed.
REMAND
The VA medical records discuss a November 2008 VA
audiological report in which the examiner opined that it was
a least as likely as not that any current hearing loss is
related to service. However, the actual VA audiological
report indentifying hearing acuity thresholds in decibels at
each of the measured frequencies of 500, 1000, 2000, 3000,
and 4000 Hertz is not in the claims file. Such information
is necessary in order to determine whether or not the Veteran
meets the criteria for hearing loss as defined by VA under
38 C.F.R. § 3.385. The RO should attempt to obtain a copy of
the Veteran's complete November 2008 audiological examination
report. See 38 C.F.R. § 3.159(c)(2).
The RO should also schedule the Veteran for a new VA
audiological examination to determine the Veteran's current
hearing acuity. See Allday v. Brown, 7 Vet. App. 517, 526
(1995) (where the record does not adequately reveal the
current state of claimant's disability, fulfillment of
statutory duty to assist requires a contemporaneous medical
examination).
The Veteran was provided a VA general medical examination in
August 2006. However, with regard to the Veteran's claims
for service connection for fibroid tumor, left hip
disability, cervical spine disability, left and right knee
disabilities, and left ankle disability, the examination is
not adequate for adjudication purposes. The examination
report does not discuss the complaints, injuries and
treatment shown in the service treatment records, and it does
not provide an opinion as to whether the current claimed
disabilities are related to the Veteran's period of service.
In numerous statements dated in September 2007, the Veteran's
private physician, M.L., M.D., indicated that the Veteran had
diagnoses related to his hearing, ankles, hips, knees, and
cervical spine, which were "possibly related to" various
activities in military service. Dr. M.L. did not furnish
rationale for any of these opinions, nor did she indicate
whether she had reviewed the Veteran's service treatment
records.
At the hearing, the Veteran testified that her private
physician had diagnosed her with fibromyalgia for which she
took medication. She said that a VA doctor also indicated
that her neck condition was possibly related to fibromyalgia.
A March 2009 VA outpatient record indicates that the
Veteran's symptoms were consistent with fibromyalgia. As the
fibromyalgia diagnosis arises from the same symptoms for
which the Veteran seeks benefits in relation to many of her
joints, the diagnosis does not relate to an entirely separate
claim not yet filed by the Veteran. Rather, the diagnosis
needs to be considered to determine the nature of the
Veteran's current condition relative to her right hip, left
hip, cervical spine, left ankle, and bilateral knee claims.
Clemons v. Shinseki, 23 Vet. App. 1 (2009).
In light of the foregoing discussion, VA examinations are
indicated. See Colvin v. Derwinski, 1 Vet. App. 171, 175
(1991) (when the medical evidence of record is insufficient,
in the opinion of the Board, or of doubtful weight or
credibility, the Board must supplement the record by seeking
an advisory opinion, ordering a medical examination, or
citing recognized medical treatises that clearly support its
ultimate conclusions).
Accordingly, the case is REMANDED for the following action:
1. Obtain for association with the claims
file a copy of the Veteran's complete
November 2008 VA audiological report,
including audiogram findings that reflect
pure tone thresholds, in decibels, at 500,
1000, 2000, 3000, and 4000 Hertz, if
available.
2. Schedule the Veteran for a VA
audiological examination. The claims file
should be provided to the examiner for
review. If the Veteran meets the VA
criteria for hearing loss in either ear,
the examiner is requested to provide an
opinion as to whether it is at least as
likely as not that such hearing loss is
related to the Veteran's period of
military service. A complete rationale
should be given for all opinions
expressed, and the foundation for all
conclusions should be set forth.
3. Schedule the Veteran for an
appropriate examination to determine if
she currently has uterine fibroids. The
examiner should review the claims file,
including a September 2007 private
ultrasound report discussing fibroids. If
uterine fibroids are currently found, the
examiner should examine the service
treatment records, including a July 1983
record that indicates probable fibroid
uterus, and provide an opinion as to
whether it is at least as likely as not
that a current fibroid disability of the
uterus began during the Veteran's period
of service. A complete rationale should
be given for all opinions expressed, and
the foundation for all conclusions should
be set forth.
4. Schedule the Veteran for an orthopedic
examination to determine the nature and
etiology of all disabilities present in
relation to the cervical spine, left hip,
left ankle, and right and left knees. The
claims file should be made available to
the examiner in conjunction with the
examination.
a. Regarding the cervical spine,
the examiner should review the
claims file, including a November
2008 VA outpatient neurosurgery
consult that indicates that the
Veteran has cervical spondylosis
with radiculopathy. The examiner is
also asked to examine the service
treatment records, including a
December 1995 report of neck pain
after a motor vehicle accident, and
complaints of neck pain in December
1998 and February 1999, and to
provide an opinion as to whether it
is at least as likely as not that
any current cervical spine
disability is related to the
Veteran's period of service.
b. Regarding the left hip, the
examiner should review the service
treatment records showing multiple
complaints of left hip pain since
November 1981, as well as the post-
service medical records, including
the August 2006 VA examination
report showing complaints of left
hip pain and limitation of motion of
the left hip. The examiner is asked
to provide an opinion as to whether
it is at least as likely as not that
any current left hip disability is
related to the Veteran's period of
service.
c. Regarding the left ankle, the
examiner should review the service
treatment records showing left ankle
complaints and/or sprain in October
1992 and December 2002, as well as
the post-service medical records,
including February and March 2009 VA
records showing complaints of left
ankle pain. The examiner is asked
to provide an opinion as to whether
it is at least as likely as not that
any current left ankle disability
found is related to the Veteran's
service.
d. Regarding both knees, the
examiner should review the service
treatment records showing knee
complaints, as well as the post-
service November 2006 VA records
showing chondromalacia of the knees
and May 2007 VA records of right
knee surgery. The examiner is asked
to provide an opinion as to whether
it is at least as likely as not that
any current left knee disability or
right knee disability is related to
the Veteran's period of service.
A complete rationale should be given for
all opinions expressed, and the foundation
for all conclusions should be set forth.
5. Schedule the Veteran for an
appropriate examination to determine the
presence, nature and etiology of any
systemic musculoskeletal process,
including fibromyalgia. The claims file
should be made available to the examiner
in conjunction with the examination. The
examiner is asked to render an opinion as
to whether the Veteran has a current
diagnosis of a systemic musculoskeletal
process, including fibromyalgia. If such
a process is diagnosed, the examiner is
asked to describe specifically all joints
affected by the disorder, and to provide
an opinion as to whether it is at least as
likely as not that any current systemic
musculoskeletal process is related to the
Veteran's period of service. A complete
rationale should be given for all opinions
expressed, and the foundation for all
conclusions should be set forth.
6. Thereafter, adjudicate the claims.
If, upon adjudication, any benefit sought
on appeal remains denied, the Veteran
should be provided a supplemental
statement of the case, showing review of
all evidence received since the December
2007 statement of the case, and return the
case to the Board.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2009).
____________________________________________
Debbie A. Breitbeil
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs